Judges out of bounds in blocking deportation of terrorist threats

OPINION:

Anyone who has taken a basic civics course can tell you that the United States government has three coequal branches. Congress makes the laws, the executive carries them out and the judiciary interprets them. These are separate, independent functions carried out as part of a system of checks and balances. When one branch starts intruding into the wheelhouse of the others, the system of checks and balances collapses like a house of cards built on a wobbly table.

Judicial overreach is the term used to describe circumstances where the judiciary starts behaving like a super-legislature or an ad hoc executive. Unfortunately, that kind of behavior has been particularly prevalent in immigration policy. Here are just two recent examples:

• U.S. District Court Judge Leo T. Sorokin agreed to hear the case of Dr. Rasha Alawieh. Dr. Alawieh, a Lebanese citizen, had been admitted to the U.S. temporarily with an employment-related status. When she attempted to return to the U.S., she was denied readmission. U.S. Customs and Border Protection had uncovered evidence that she is a supporter of Hezbollah, an Iranian-backed terrorist group.

• Chief Judge James E. Boasberg of the U.S. District Court for the District of Columbia issued an order enjoining the deportation of Venezuelan gang members under the Alien Enemies Act. That legislation allows for the expedited removal of enemy foreign nationals whenever “any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government.”

These actions were prime examples of “judicial activism,” when judges interpret statutes to further their preferred policy goals rather than according to established legal guidelines.

In 1950, in a case called U.S. ex rel. Knauff v. Shaughnessy, the Supreme Court made it abundantly clear that “The admission of aliens to this country is not a right, but a privilege, which is granted only upon such terms as the United States prescribes,” and “it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of Government to exclude a given alien.”

In other words, the decision to exclude Dr. Alawieh belonged solely to U.S. Customs and Border Protection. Judge Sorokin had no authority to review that decision because it involved an unadmitted, nonresident alien with no right to be admitted to the U.S.

Similarly, the decision to invoke the Alien Enemies Act exercises the president’s powers over defense and foreign affairs. In Chae Chan Ping v. U.S., the Supreme Court made it clear that “the conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative — ‘the political’ — departments of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision.” That’s a fancy way of saying that making determinations about foreign affairs is an inherently political endeavor.

Judicial overreach and judicial activism undermine the separation of powers. They enable the judiciary to nullify the will of the electorate and lead to poor policies born of a lack of expertise. Indeed, the very purpose of the Constitution was to avoid such problems by assigning federal responsibilities to the branches of government best suited to handle them.

Courts are set up to interpret and apply the law. They are not designed to evaluate intelligence information, account for diplomatic concerns or assess military capabilities. As such, U.S. District Court judges are not and will never be in a position to determine whether Dr. Alawieh presents a terrorist threat to the United States or whether members of Tren de Aragua, a state-sponsored criminal organization pouring over our borders, constitute a predatory incursion. That task should fall to the president, with the consultation of the secretaries of state and defense, as Congress intended.

American voters gave President Trump a second term in office based mainly on his promises to restore integrity to America’s borders and rid the country of illegal aliens. As long as Mr. Trump’s policies pass constitutional muster (and most of them do, as Mr. Trump has an estimable record of success in the courts), the American people deserve to see them put into place. It should not be within the power of any unelected jurist to thwart the process of republican democracy or to bypass the checks and balances set forth in the Constitution.

If the Supreme Court does not take action to curb judicial intrusion into the legislative and executive spheres of government, our republic runs a high risk of devolving into a kritarchy, a system of rule by unelected judges. Any policy that a single federal judge dislikes will fall prey to a nationwide injunction and American democracy will be replaced with rule by a credentialed elite that has never been voted into office.

• Matt O’Brien is the director of investigations at the Immigration Reform Law Institute and the co-host of its podcast “No Border, No Country.” Immediately before working for the institute, he served as an immigration judge. He has nearly 30 years of experience in immigration law and policy, having held numerous positions within the Department of Homeland Security.